Loyola University Chicago, School of Law LAW eCommons Faculty Publications & Other Works 2019 Academic Freedom and the Catholic University: An Historical Review, a Conceptual Analysis, and a Prescriptive Proposal John M. Breen Lee J. Strang Follow this and additional works at: https://lawecommons.luc.edu/facpubs Part of the Higher Education Commons ARTICLE ACADEMIC FREEDOM AND THE CATHOLIC UNIVERSITY: AN HISTORICAL REVIEW, A CONCEPTUAL ANALYSIS, AND A PRESCRIPTIVE PROPOSAL JOHN M. BREEN* & LEE J. STRANG" INTRODUCTION Among university professors, researchers, and instructors, academic freedom is universally acknowledged as a principle that is indispensable to the academic enterprise. Those involved in higher education often describe the principle as a "constituent element" of the modern university-a prin- ciple that "distinguishes a university from a propaganda institution or a center of indoctrination." 2 Supported by a culture of deference to individual faculty, given juridical form, and accompanied by rights of due process, the principle of academic freedom is a formidable source of protection for faculty engaged in both classroom instruction and scholarly research. But what does this principle mean in the context of an academic insti- tution that itself holds substantive truth commitments with respect to ques- tions that are a source of debate and inquiry within the academic community? Can a college or university be committed to both academic freedom, which establishes the procedural ground rules for conducting the scholarly enterprise, and a set of substantive commitments that the institu- tion believes are grounded in truth? Although the tension between open inquiry and other truth-laden convictions can be found in any institution where both kinds of commitments are present, historically, critics have * Georgia Reithal Professor of Law, Loyola University Chicago School of Law; B.A. 1985, University of Notre Dame; J.D. 1988, Harvard University. ** John W. Stoepler Professor of Law & Values, University of Toledo College of Law; B.A. 1997, Loras College; J.D. 2001, University of Iowa; LL.M. 2003, Harvard University. 1. See, e.g., Lonnie D. Kliever, Religion and Academic Freedom: Issues of Faith and Rea- son, 74 ACADEME 8, 8 (Jan.-Feb. 1988) ("Academic freedom is a constituent element of the very foundations upon which the modern university rests."). 2. Charles E. Curran, Academic Freedom: The Catholic University and Catholic Theology, 66 ACADEME 126, 127 (Apr. 1980). 253 254 UNIVERSITY OF ST. THOMAS LAW JOURNAL [Vol. 15:2 claimed that the most pressing challenges to academic freedom have re- sided in religiously-affiliated colleges and universities. In the Essay that follows, we take up these questions specifically in the context of a Catholic university. The Essay is composed of four parts. In Part I, we sketch the origins of the concept of academic freedom in colleges and universities in the United States. We then examine the contemporary understanding of the concept as set forth in the 1940 Statement of Princi- ples on Academic Freedom and Tenure from the Association of American Colleges (AAC) and the American Association of University Professors (AAUP). We also examine several key documents that led up to the 1940 Statement and the official interpretive gloss that the AAUP has put on the document since it was first issued. Next, we provide a brief history of the experience of academic freedom in Catholic universities in the United States. This history includes a series of pivotal controversies in the 1950s- 1960s at four Catholic universities: the University of Notre Dame, St. John's University, the University of Dayton, and the Catholic University of America. It also includes a brief review of two transformative documents- the Land O'Lakes Statement (1967) and The Catholic University in the Modern World (1972)-in which leading Catholic educators endeavored to articulate a conception of a modern Catholic university that included a ro- bust role for academic freedom. In light of these developments,3 Catholic universities revised their policies on academic freedom. Here we trace the development of this policy at one school, Loyola University Chicago, as representative of what took place at most Catholic institutions of higher learning.' In Part II of the Essay, we offer a conceptual critique of academic freedom as defined in the 1940 Statement. We argue that this widely ac- cepted articulation of the concept is question begging at best, and at worst internally incoherent. The AAUP definition of academic freedom is ques- tion begging because it assumes a particular conception of the university as normative and then draws its definition of academic freedom from that con- ception. There are, however, other reasonable conceptions of what consti- tutes a "university" with their own entailed conceptions of academic freedom, such that the AAUP's implicit assumption stands undefended. Furthermore, the AAUP definition is internally incoherent. The AAUP con- ception of academic freedom declares that every idea must be subject to challenge and possible refutation while, at the same time, harboring certain 3. These developments coincided with the reorganization of most Catholic universities under the governance of lay boards of trustees and the general reception of Vatican II. See JAMES JEROME CONN, S.J., CATHOLIC UNIVERSITIES IN THE UNITED STATES AND ECCLESIASTICAL Au- THORITY 153-84 (1991). 4. An appendix to the Article provides examples of similar policies at several Catholic uni- versities including Loyola University Chicago, Creighton University, Georgetown University, the University of Dayton, and the University of Notre Dame. 2019] ACADEMIC FREEDOM AND THE CATHOLIC UNIVERSITY 255 ideas as unassailable and immune from criticism. All rational thought, in- cluding the 1940 Statement, must proceed by assuming the truth of certain presuppositions. Yet, without argument, the 1940 Statement singles out re- ligious propositions as uniquely obnoxious to the academic enterprise. In developing this critique, we draw upon the work of Pope John Paul II, espe- cially his apostolic constitution, Ex Corde Ecclesiae, on the nature of Cath- olic universities, and his encyclical, Fides et Ratio, on the relationship between faith and reason. We also examine the strikingly different approach to academic freedom taken in the founding document of Thomas Aquinas College, and in the work of philosophers David Schindler and Alvin Plantinga. In Part III of the Essay, we argue that the many striking contradictions between the conception of academic freedom (as articulated in the 1940 Statement and typically defended in academic circles) and the actual prac- tice of academic freedom in American universities (private and public, sec- ular and religious) indicates that few people actually believe in the AAUP version of the principle. This disconnect also suggests that the 1940 State- ment is not so much the articulation of a foundational principle of academic life as an ideology that serves ends other than those it purports to advance. Of course, some version of academic freedom is necessary for univer- sities to fulfill their mission as conveyors of knowledge and centers of in- quiry. This is no less true of Catholic universities. In Part IV of the Essay, we offer some practical suggestions for how Catholic universities can re- main faithful to the truth professed by the Church, while giving their faculty members the freedom necessary to raise questions, conduct research, and participate in the great conversation that is the essence of the scholarly enterprise. I. A BRIEF HISTORY OF ACADEMIC FREEDOM IN AMERICAN UNIVERSITIES A. The Emergence of Academic Freedom in the Late-Nineteenth Century From the colonial period through the first half of the nineteenth cen- tury, college and university professors were regularly selected from the ranks of clergy who were members of the denomination sponsoring the col- lege.5 Though the questions of academic freedom that arose during this era of college sectarianism often involved the charge of heresy, "these exper- iences had not shaped any broad principles to guide the life of the col- leges."' The old-time college professor typically cared little about 5. See GEORGE M. MARSDEN, THE SOUL OF THE AMERICAN UNIVERSITY: FROM PROTESTANT ESTABLISHMENT To ESTABLISHED NONBELIEF 81 (1994). 6. FREDERICK RUDOLPH, THE AMERICAN COLLEGE & UNIVERSITY: A HISTORY 410-11 (1962). 256 UNIVERSITY OF ST. THOMAS LAW JOURNAL [Vol. 15:2 publishing the latest tract on the new topic in his discipline-assuming he saw himself as a member of a discrete academic discipline, which would have been unusual. Rather, his position was to share what he knew and to serve as a role model embodying the Christian wisdom and virtues of the college's sponsoring religious community. Following the German university model, major American universities in the late nineteenth and early twentieth centuries were reconfigured as research institutions. No longer content with merely conveying knowledge from one generation to the next, the modern university was now dedicated to the discovery of new knowledge. Thus, the new academic man was iden- tified by "[i]ntellect rather than piety"' and marked by his productivity in scholarly publication rather than his proficiency in the classroom. American academics borrowed two concepts from their German counterparts: Lern- freiheit-the freedom of students to study and take the courses of one's choice-and Lehrfreiheit-the right